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Tuesday, November 15, 2011

I was a criminal trial
lawyer for twenty years. I have tried
scores of rapes, murders, and child abuse cases, and read thousands of police
reports.

I’ve heard every
lie that can be told—from the mouths of my own clients and the witnesses to
their conduct, to the most offensive lies—the ones from the very people who are
paid not to lie—the judges, prosecuting attorneys, and the police.

Everybody has their
own agenda, and virtually nobody is unwilling to lie in order to advance it.

I will remember
11/7/11 for the metaphor that it is—what should be forward is actually
backwards at the start.

Michael Jackson was
a once-in-a-generation talent, but the product of an abusive father. When the entertainer’s fame, power, and money
grew to allow it, he built a home/ranch/amusement park he called Neverland, a
place found in the minds of children where fairies spread fairy dust, a magic
material which enables people to fly, in conjunction with them thinking happy
thoughts, a place where, thanks to Walt Disney, we think of as a place we never
have to grow up.

Although never
proven against him beyond a reasonable doubt, Jackson had a predilection for young
boys—building a fantasy playland where they would want to go, befriending them,
having them sleep over, and plying them with gifts and alcohol. I can’t prove it, but my bones tell me that
Michael Jackson sexually abused young male children.

Jackson was also a drug addict. Like his fellow drug addict Rush Limbaugh, he
could afford to have his own doctor dispense the drugs to him legally. Jackson
was never charged for doing drugs.

From what torment was
Jackson seeking
escape?

The predator preys
on the weak. The lion searches for the
wildebeest least equipped to fend off the attack. The lion separates the young wildebeest from
the protection of pack with money, gifts, attention, fame, access to things
that interest and attract the prey.

Fast forward to
11/7/11. The news reads that Michael
Jackson’s doctor gets convicted of killing Jackson for giving him the drugs he wanted. Nobody killed Michael Jackson. He took his own life, willingly. For the lives of the children he ruined, Jackson goes free. His doctor goes to jail.

A
Naples, Florida
man, Daniel Enrique
Guevara Vilca, a 26-year-old Peruvian who entered the country legally in 2000 but
overstayed his visa, isconvicted of 454 counts of
possessing child pornography, and is sentenced to life in prison. There is no evidence he actually assaulted
anybody. Police give no word on the
people who produced the images or made them available for distribution, nor is
there any word about what, if anything, is being done to find or protect the
children in the images.

Guevara Vilca had
been arrested two years ago when investigators executed a search warrant around
6 a.m. at an apartment he shared with his mother and brother. They seized a computer, and linked him to the
computer to him through “interviews”, even though he listened to his trial
through a Spanish translator. The police
report in the case is available for download on the internet. Guevara Vilca sits in jail for two years
awaiting trial.

Rewind to May of 1998. Jerry Sandusky, assistant football coach at
Penn State and head coach in waiting, founder of The Second Mile, a charity
formed to “help children who need additional support and would benefit from
positive human interaction”, is confronted by a young wildebeest’s mother. The lion met the young wildebeest through The
Second Mile. The mother wants to know
what Sandusky is doing showering naked in a Penn State locker room with her
11-year-old son, grabbing him around his waist, soaping his back, and holding
him up to the shower head from behind with Sandusky’s genitals pressed against
her son’s buttocks. She calls the
University Police.

The police
investigate. Child protective services
is called with the blessing of Wendell Courtney, attorney for Penn State University. Courtney is also attorney for The Second
Mile. Sandusky admits to showering with other boys;
he says he wishes he was dead. The
director of the police, Thomas Harmon, sees that a police report is made that
nobody but a grand jury can now seem to get, and directs the detectives to
close the investigation. The District
Attorney, Ray Gricar, exercises prosecutorial discretion and decides not to
charge Sandusky.

The next May, in 1999,
Joe Paterno tells Sandusky that he will not be
the next head coach at Penn
State.

Although many
reports have stated that Sandusky retired in
June of 1999, Sandusky coaches the Penn State
defense in the Alamo Bowl in San
Antonio, Texas on
December 28, 1999. Another young
wildebeest is listed as a member of the Sandusky
family traveling party. He is now known
as Victim 4. Sandusky meets him through The Second
Mile. That youngster tells a Pennsylvania grand jury that he has been abused by Sandusky for 2 or 3 years
prior to the Alamo Bowl, beginning at age 12.
Prior thereto, much of the child molestation takes place in hotel rooms with
Sandusky prior to Penn State
football games.

The lion would kiss
the inner thighs and genitals, insert his aroused sexual member into the young
wildebeest’s mouth, sometimes resulting in orgasm for the lion. Sandusky
makes slight penetration to the youngster’s anus with both his finger and his
sexual member. Victim 4 resists these
rear advances, and when he resists them at the Alamo Bowl in Texas
in December of 1999, Sandusky
threatens to send him home.

Penn State wins the game 24-0 over Texas A & M,
with Lavar Arrington leading a defense that is considered the best in the
country. Sandusky, only age 55, retires after the
game. No head coaching job, no raise, no
professional offers, just to spend more time devoting his energies to The
Second Mile. The head of the campus
police, Gary Schultz, tells the aforementioned grand jury that Sandusky
retired when Paterno felt it was time to make a coaching change and also to
take advantage of an enhanced retirement benefit under Sandusky’s state pension.

If you believe
that, then you should not be shopping for vacant land in Florida.

Sandusky is given “emeritus” status with Penn State,
meaning that he retains as an honorary title the rank of the
last office he held at PSU. Coach
Sandusky is rewarded with, among other things, an office and phone in the
football building, and unlimited access to the football facilities, including
the locker rooms, showers, and saunas. The
only thing Penn State
does not provide Sandusky
with is underage children. The Second
Mile provides that.

A fall evening, in
2000, with the football team at an away game, a temporary janitor sees Sandusky
performing oral sex on a young boy pinned up against the wall in—you guessed
it—the showers of the football building.
Another janitor sees Sandusky
and the boy come out of the showers hand in hand. The temporary janitor tells his fellow
janitor what he saw, and they decide to tell their supervisor. They fear they will lose their jobs. The supervisor does not report it to
authorities, nor do the janitors. They
all see Sandusky
lurking around the football building in his car until 3:00 a.m. The young boy, estimated to be between 11 and
13, is now known only to Sandusky. We know him only as Victim 8.

On Friday March 1,
2002, former Penn
State quarterback and
28-year-old graduate assistant Mike McQueary at 9:30 p.m. in the locker room at
the football building finds the lights and the showers on. He hears rhythmic slapping sounds he believes
to be of sexual activity. He
investigates, and sees a naked 10-year-old boy, Victim 2, pinned against a wall
being subjected to anal intercourse by a naked 58-year-old Sandusky.
Both the victim and Sandusky
see McQueary, who flees.

McQueary calls his
dad, who tells him to come home. They
decide McQueary needs to tell Paterno. He
goes to Paterno’s home the next day.
Paterno says McQueary told him that McQueary saw Sandusky in the football building showers “fondling”
or “doing something of a sexual nature to a young boy.”

Paterno waits until
the next day, and calls Penn
State athletic director
Tim Curley, who, like McQueary, played quarterback for Paterno.

Nobody calls the
campus police, the real police, or the reports the incident to child protective
services.

Curley waits for a
week and a half, and summons McQueary to a meeting between the two of them and
Gary Schultz, who is the Senior Vice President for Finance and Business, which
inexplicably means he oversees the campus police department. No Paterno this time. McQueary tells them what he saw. Curley and Schultz say they will look into
it.

Two weeks later
Curley calls McQueary, who was told Sandusky’s
keys to the locker room were taken away, and the incident reported to The
Second Mile.

Prosecutor Ray
Gricar goes missing on April 15, 2005 without explanation. His laptop computer is later found in the Susquehanna river near the spot where his car was
found. The computer’s hard drive is
missing. Records show that before his
disappearance, Gricar made internet searches on such topics such as "how
to wreck a hard drive", "how to fry a hard drive", and
"water damage to a notebook computer". Gricar’s hard drive is also found in the
river two months later. No data can be
recovered from it. Gricar remains
missing, and is legally presumed dead.
He, too, was evidently seeking escape from something.

Victim 1, who along
with his mother are the only heroes in this story, has been molested by Sandusky since his was 11
or 12, from 2005 or 2006. He meets Sandusky through The
Second Mile. Sandusky
takes him to Eagles games, Penn
State practices, buys him
gifts, and has him sleep over in the basement.
Sandusky
starts by “cracking his back” every night, blows on his stomach, and in time
starts to kiss him on the mouth. Sandusky graduates to
performing oral sex on the boy. Victim 1
knows it is wrong, and tries to avoid the lion.

The lion hangs
around the young wildebeest’s high school, becomes a volunteer assistant
football coach, and routinely calls the student out of class to meet with
him. In the spring of 2008, when Victim
1 is a freshman in high school, he tells his mother, who reports it to the
school. The lion is barred from the
school, who calls the authorities. Someone
finally acts like an adult.

In the first part
of 2009, then-Pennsylvania attorney general Tom Corbett, now governor, launches
an investigation. A grand jury is
convened, and on Friday, November 4, 2011, the charges are mistakenly announced
while Sandusky is on vacation in Ohio. The attorney general’s office launches an
investigation into its investigation.

The next day, Jerry
Sandusky is charged, and District Judge Leslie Dutchcot frees Sandusky on $100,000 unsecured bail, the
legal equivalent of a “get out of jail free” card. Dutchcot volunteers for The Second Mile.

The PSU athletic
director and the head of the campus police are charged with perjury by the
grand jury.

Joe Paterno
retires, effective at the end of the season, so that the PSU Board of Trustees
“should not spend a single minute discussing my status. They have far more important matters to
address. I want to make this as easy for them as I possibly can.” Of his former second in command on the PSU
football team, who coached with him for over thirty years, Paterno says “If
this is true we were all fooled, along with scores of professionals trained in
such things, and we grieve for the victims and their families.”

There is no
explanation of how Paterno can learn of his trusted aide undergoing police
investigation for criminal sexual conduct after showering with young boys in
1998 in the football showers, engineer a premature retirement of that aide
after another incident in Texas during the Alamo Bowl trip in 1999, remain
blissfully ignorant of a janitor-reported sodomy of a young boy in 2000 by that
aide in the football showers, and dismiss as “horseplay” or “fondling” or
“something of a sexual nature” what was described to a grand jury and
university superiors as forcible anal intercourse with a young boy in the
football showers, and still maintain “we were all fooled.”

He might be still
be fooled, but I doubt it. I can; however,
assure him that I am not, by either Sandusky
or Paterno.

The PSU Board of
Trustees fires Paterno hours after he “retires”. More adults getting in the way of grown men supervising
games they insist build character. From any
objective vantage point, those who supervise the games at PSU not only
compromise their own character, they corrupt the character of those around
them.

Jerry Sandusky
speaks to the nation. He says he is
innocent. His lawyer, Joe Amendola, says
he is innocent. I am not fooled.

Penn State
University finally bans Jerry Sandusky from the
campus, and access to the football showers, on November 6, 2011, the day after
he is formally charged.

Friday, February 25, 2011

I moved to Phoenix to be able to observe and feel first hand what type of circumstances, and what type of people, create and live in an environment that incubates both violence and palpable racial tension. (At least the current version thereof, as my home state of Michigan’s racial polarization between whites and blacks in the 60’s and 70’s was precisely that.)

And I suppose I should now add SB 1405, which would restrict emergency medical care and treatment for undocumented immigrants, and SB 1222, which would effectively turn public housing administrators into immigration control officers.

Though my friend was right to make the point, what I found in Phoenix was much different than what was advertised. And having come of age in Michigan in the 1960’s, home to the Detroit riots, I cannot say I was very surprised. I suppose I possess a Midwestern bias; however, I consider people from the that area of the country, particularly the 5-state area with which I am most familiar—Ohio, Indiana, Illinois, Wisconsin, and, of course, Michigan—to house the kindest, most generous, most forgiving, most genuine, and most compassionate people in this great country. The people are real; what you see is generally what you get.

Native Arizonans are, for the most part, Indians whose land we stole, or Mexicans who we say are here illegally. They can hardly be blamed for the Arizona agenda of hate.

The people of Phoenix, indeed the entire State of Arizona, hardly deserve the reputation their “leaders” have earned for them in the last 30 years. They are every bit as hospitable as the those of the South, as bright as the shiniest stars of the East, as genuine and down to earth as the people of the Midwest, and, of course, on the cutting edge of all that is bold and hip about the West.

Arizona people are wonderful, loving people. Most of them migrated to the Grand Canyon State from somewhere else. It’s the reason Arizonans possess many of the good qualities of all parts of our country. Like Texas, it is big, and freedom grows unabated where it has room to do so.. Like California, it was the land of opportunity, and attracted many looking for new lives or fresh starts. And it is the playground of the Sun, which gives love, warmth, and light not because it expects something in return, but because that is its function.

These elevated level of freedoms historically available in Arizona---of speech, of opportunity, of the ability to protect oneself, freedom from regulation---inure to everyone. Just as the Nazi’s have every right and freedom to march in Skokie to ensure that they will never, ever come to power, so has every right-wing ignoramus the freedom to settle in and make his or her voice heard in Arizona.

Since Barry Goldwater’s lunacy charge to start World War III in 1964, it seems every right wing-nut job who wants to remake himself goes to Arizona. JD Hayworth, William Rehnquist, Ben Quayle, Joe Arpaio, Jan Brewer, Russell Pearce, and now a host of Nazi’s and out-of touch-with-reality Republican state legislators—just to name a very few. They are preaching to a choir of zombies-esq minions who moved to Arizona for the same reasons their “leaders” did. (BTW—Rush Limbaugh, Bill O’Reilly, and Glenn Beck are not “leaders”, but rather circus clowns,)

The state now shines as the brightest and most shameful example of what happens when right-wingers have any control. The urge to repeal, restrict, and repress out of fear is the calling card of all right-wing reactionaries.

It's fair (not FAIR) to call the record above the Arizona agenda of hate. But if one believes the type of thinking underlying it is in any way unique to, or reflective of, Arizona in a way that is not duplicated in EVERY other area of the county, then I submit one needs to take a look around, and wake up and smell the coffee (not necessarily in that order).

Just as Arizona has taken the lead in the propagation of this hate, it will be the State of Arizona that will be responsible for the falls of Racists, Nazi’s, Tea Party Konstitutional Kooks, and vapid Sarah-Palinesque puppet politicians who might otherwise have trouble landing a job at the local Dairy Queen.

Wherever you are today—Arizona, Kansas, New York, Florida, California, Texas, Georgia, Pennsylvania, Washington, or Mississippi—take a look in the mirror, for if you do not do something today to help stem the tide of racism and hate that masquerades for the immigration debate in this country, then you are part of the problem rather than part of the solution.

Saturday, November 13, 2010

Having been dormant for two months, there’s a lot for me to write about.

The funniest thing I saw lately was a “prepared statement” by Arizona Governor Jan Brewer regarding the oral argument in the 9th Circuit Court of Appeals on SB 1070. (The word “prepared” and “Brewer” in the same sentence should almost never be utilized as having no real-life application. If you doubt this, you are cordially invited to view her debate performance on YouTube, which fits into the category of “you just can’t make this shit up”. The only debate in which Brewer would have a sporting chance—on relative merits of public indecency with Pee Wee Herman)

I suppose Brewer’s (and by extension, the people of Arizona’s) lawyers (they obviously wrote the statement) probably know better, but if you are going to pay them good money to verabalize this drivel, they are not going to run out of material. “The health, welfare and safety of the citizens of Arizona are irreparably harmed every day the court allow SB 1070 to be put on hold and the federal government refuses to enforce all immigration laws” the statement said.

Almost as funny was a picture in The Arizona Republic of County Sheriffs Larry Dever, Paul Babeu, and Joe Arpaio watching the hearing live from a law office in Scottsdale (a shock that they have monied, Republican lawyers). What these three clowns are capable of absorbing from watching a courtroom hearing can be well-contained on the head of a pin.

First of all, any good lawyer with any appellate oral argument experience at all can and will tell you not to read too much into the questions or comments from the judges. They cannot be used to predict how the panel will rule.

Second, if you really believe in your heart that there is any scintilla of a chance that a court (any court, even a Supreme Court with 4 Judges by the name of Rehnquist, and 5 Reagan appointees) is going to rule that it is constitutional for Arizona to enact a state law that makes it a crime to be in the country illegally, then you are already so far out in left field that what you think or believe has no relevance to reality anyway. Have fun with it, but I’m guessing you’re going to be complaining in the end that “the judges didn’t even read the law!” (Yikes!!!)

“We as sheriffs have a particular perspective”, said Sheriff Dever. I agree, but would submit that the perspective of which he speaks—total ignorance, combined with lack of compassion for those human beings both in the country illegally, and those of color who are here legally.

Their only other perspective is to get reelected.

If you support SB 1070, you lack confidence, you want to feel good about yourself. Look to your spiritual leader, Russell Pearce, another former cop with a “particular perspective” who sponsored the measure. Pearce said the hearing “went fairly well”. “We know this will survive.”

I rest my case. (hehehehehehehe)

Arpaio called the Justice Department lawsuit a political move. Really? I guess that’s different from the pink underwear, the tent jails with inhumane conditions, and the green bologna. (I figured Arpaio’s side would be the one providing the bologna in this saga.)

The same document that ensures dangerous fascist thinkers like Arpaio and his non-political sheriff buddies will lose this war—the United States Constitution—also ensures the rights of the Neo-Nazi NSM followers who will demonstrate today in Phoenix. (If you don’t or cannot accept this, I suggest you Google “Skokie, Nazi, and First Amendment”.)

If you feel compelled to somehow infringe on the Nazis’ rights, I offer the following—“the freedoms guaranteed by the First Amendment depend on protecting not the speech we love, but the speech we hate.” Think about it.

I’m going to approach the Nazi’s like I feel every other Arizonan taxpayer, citizen, or prospective voter should approach Arpaio and his ilk—I’m going to ignore them.

Tuesday, November 2, 2010

If you believe you spotted DeadLawyer in the Kalamazoo, Michigan Burger King Elvis frequented after his premature demise, you might be on to something.

Unlike Elvis, I’m resurfacing as promised. I have relocated to Phoenix in order to observe the events of history from the Lion’s Den.

I hope to cover the prosecution of Sheriff Joe Arpaio for abuse of power first-hand.

The press of relocation business necessitated a short break from writing. I also had to goof off some; I was a lawyer you know. I play tennis. I attend football games that my team loses to aspiring farmers planted on the banks of something called the Red Cedar.

I drink a lot of Starbucks coffee. I read a lot.

But after two months and more than 6,000 miles, I am delighted to report that this country is filled with a melting pot of fabulous people.

About half of those people blame what they call “liberals” for poverty, racism, big government, the economy, and other assorted ills that the United States finds itself confronting at this moment.

Today they will have a large hand in restoring some of the power that the Republican Party lost in the last election, as happens virtually every year in an off-year election. They will believe that things will change for the better.

As I explore a city where the racial tension is palpable, I am struck how we are all the same despite the exclamations of those who would call attention to our differences. There’s nothing so homogenizing as the American Dream. Some exist on the upper end of the dream, far more live and work the lower end.

For the majority of people who toil on the lower end, today will be a necessary step backwards. For people of color, the target on their back will grow just a little larger.

For me, it is a day to remain in awe of the power of the Sun, and in the healing that ensues by reconnecting with an old friend.

And making new ones. And keeping tied to old ones. And in not letting that be influenced by the color of someone’s skin, or in his or her ethnicity. That’s change we can believe in.

Thursday, September 2, 2010

The Phoenix New Times hardly needs my plug, but I am going to give them one anyway.

What I know about real journalism can be quickly summed up from a small number of movies and the occasional television show. On the other hand, I practiced criminal law for twenty years, and I like to think I tend to be ahead of the curve when it comes to many of the legal-related topics that professional journalists often journalize about.

Every once in a while, I read a piece concerning some aspect of the law written by a “normie” (human being who did not either practice law or attend law school) that impresses the hell out of me.

Beyond the entertaining, precise, and informative writing style, I appreciate the author’s allusions, whether intentional or otherwise, to concepts that I firmly believe made the passage of SB 1070 possible. As I have recently begun to develop, the circumstances that lie at the core of the anti-immigrant groundswell in Arizona go beyond anti-Mexican feelings. They go beyond mere racism. A solution to those circumstances requires the renunciation of the growing radical right wing in America.

And by “radical right wing”, I do not mean the white supremacists, Nazis, or lunatic tea baggers. I mean your average conservative Republicans, virtually all of whom fully support “throw the baby out with the bathwater” measures like SB 1070.

You think the problem is with Hispanics or Mexicans? Sorry. Think Africans and Chinese of 19th century, Irish and Italians of early 20th, Jews of various centuries, Japanese-Asians of WWII vintage, and a long list of others. Racists are equal-opportunity haters.

But what drives racism more than greed and selfishness fueled by fear? You cannot exterminate those things, but you can attempt to control them. Until the racist changes what is in his heart (and don’t hold your breath), his head will devise all sorts of ways to act out his selfishness and rage. The only governor on that conduct is the law.

The racist will exploit his victims from an economic standpoint, castigate them socially, and then proceed to piously regulate their moral conduct.

It is no coincidence that businesses and business people have not been prosecuted for hiring aliens without proper documentation. Likewise it was no coincidence when the Harrison Narcotics Act of 1914, essentially the first law in the United States to make drugs illegal, came about largely because of fear that Negroes under the influence of cocaine were raping white women, and murdering whites, because of revulsion over “degenerate” Mexicans smoking marijuana, and because of fear of “Chinamen” seducing white women with drugs. It is also no coincidence that the Governor of Arizona believes that the majority of illegal immigrants are coming to the United States not to work, but to engage in the illegal drug trade, and to commit other crimes.

It doesn’t take a genius to conclude the antidote to these poisonous people and their fantasy-based beliefs lies in curbing corporatism, in tax reform that does not merely take the form of gifts to the wealthy, and in strengthened limits on governmental power like the 4th and 1st Amendments to the United States Constitution. That way the fascists and morality police that comprise a good percentage of what passes for conservative Republicans cannot destroy the country.

This country was founded upon the protection of the rights of the minority, not as a way to advance the tyranny of the Anglo-Saxon majority. How do you think the white man protected himself from that English, Anglo-Saxon tyranny? Why, he took to his weapons and revolted, but when that part was done, then what did he do? He passed the 1st and 4th Amendments to prevent his own new government from doing to him what his old, English government had done to him.

SB 1070, and its supporters, are insulting. Only a fool could have believed SB 1070 was legal, and only a fool could have convinced himself it was right. The law is an affront to the 4th Amendment, a law which has taken a beating at the hands of conservative Republicans for 42 years.

Or do you believe that rounding up Hispanics for arrest and government processing based upon their appearance and color of their skin promotes a free and law-abiding America?

Because if you do, you are a first-class idiot. Plain and simple.

Yet do not despair. With enough ass kissing and networking with your fellow crackpots, you may well grow up to be the next Governor of Arizona, or Sheriff of its most populous county, or one of its esteemed state legislators.

Forgive me for not, in the words of Mr. Lacy, tolerating the “midway that we’ve been invited into, where barkers with badges play whack-a-Mexican for the delight of gap-toothed voters.” Pass on the left; politicians pandering to the right in this election year are causing traffic back-ups.

As Lacy also says, having a “D” behind your name does not absolve you. The would-be next Democratic Governor of Arizona, Terry Goddard, urged President Obama not to sue Arizona over SB 1070. This is a leader? Can you imagine the chaos in Arizona today had Obama listened?

If you review the human story of the victimized, legal immigrant in Lacy’s piece, take a moment to realize the import of what Lacy is saying. Pretext stops based on Gulag tactics have been standard law enforcement procedure in Arizona for decades. Racial profiling in that way is completely legal in the United States.

The Gulag tactics—stops based upon appearance, upon profile without any connection to articulable indications of illegal conduct—are not legal. But in this “free” country of ours, they are an epidemic among law enforcement.

So if you’re Mexican, or if you are white, or something else, you cannot transform a heart, but you can help stop whack-a-Mexican. We have the government we deserve. It’s long past time to impress upon your elected officials that we deserve better.

As I busily prepare to relocate to the caldron, I am asked, “Why would anyone voluntarily choose to reside in such a climate?”

But if you believe the phenomenon is confined to Arizona, you’re wrong. It’s everywhere. Arizona just happens to be the platinum package.

It also gives me a chance to pass along the only thing I ever learned in the study of political science—“all politics is local.”

Lacy again says it best, “Because the fight is in Arizona; I would not be anywhere else.”

Friday, August 20, 2010

One of my friends and readers, a longtime Arizona resident, maintains that until things return to what they were like at least 10 years ago, there will be more boycotts and protests.

There should be. And he’s right. I believe he’s pretty skinny on the number though. There absolutely should be boycotts and protests unless and until things return to were what they were like at least 42 years ago.

Otherwise, Arizona will revert to what it was in the first half of 2010—an old, bitter, racist voice in the cacophony of statehood. A good number of states, as they would have on SB 1070, will follow.

Yes, that’s right, 1968.

Before the Republican Party devised the “Southern Strategy”, designed to appeal to the white racist voter in the South. Before the “war on crime”. Before the “war on drugs”. Before the “war on terror”.

Before Nixon, before Reagan, before Bush 41, and before Cheney 1.0/Bush 43.

And very importantly, before United States Supreme Court Chief Justice Earl Warren retired, before Chief Justice Warren Burger took office, before Justice Lewis Powell, before Justice (later Chief Justice) William Rehnquist, before Justice Sandra Day O’Connor, before Justice Antonin Scalia, before Justice Anthony Kennedy, before Justice Clarence Thomas, before Chief Justice John Roberts, and before Justice Samuel Alito—activist, conservative judges all who made and make new law everyday that conforms to their ordered, repressive vision of what American society should look like.

As a result of those phenomena and persons above-named, we as a people are left with an essentially meaningless 4th Amendment prohibition against government search and seizure, legalized racial profiling, the near-destruction of the writ of habeas corpus, and the walkover of corporate over individual interests, including in the area of freedom of speech.

We can either do something about those 42-year infringements upon freedom, or we can do nothing, and all of us turn into Arizona, where fat, old cops like Joe Arpaio and Russell Pearce administer the law without any regard to it, prosecute their political opposition with the help of vote-seeking prosecutors, and sit around administering attempted racial purges while drafting new laws like SB 1070 with white supremacists.

Why 1968? It was a watershed in the direction of the post-WW II American criminal justice system. Our United States Constitution, and our system, is based upon what has been referred to as a “due process model”. It is built upon the presumption of innocence, and stresses accuracy. Many a criminal-case closing argument has quoted the oft-cited maxim that “in our system, it is far preferable that 10 guilty men go free than one innocent man go to jail.”

Yet about 1968 most of the country went into the “crime control model” of criminal justice. That model rests on the unwritten but nevertheless real presumption of guilt, and emphasizes administrative efficiency rather than justice. Many, if not most, modern American jurists sitting in a criminal court are loathe to tolerate assertive and effective advocacy on behalf of a charged defendant; they prefer counsel to “host” the conviction like Bob Barker recording an episode of “The Price is Right.”

Presidential candidate Richard Nixon (you knew he had to be a part of this, did you not?) that year published his position paper on criminal justice called “Toward Freedom from Fear”. At the same time the Republican party was actively working its racist Southern Strategy, Nixon proposed a “war on crime”. He didn’t invent the term, but he was the first to put an “ends justifies the means” program of crime eradication into action.

Thus the 70’s, 80’s, and the 90’s saw a swing to the right in criminal law enforcement the likes of which had not been seen since Salem, Massachusetts in the late seventeenth century.

The “war on crime” became so politically popular that wars on drugs and on terror followed, each with their own contribution to the elimination of freedoms in the name of order and security.

Arizona was the perfect breeding ground for the hatching of the mosquitoes that are the new criminal laws and procedures advocated by the right in the 21st century.

Do you look brown? In the country legally? “Show me your papers.” “No papers, you’re going to have to wait in the local hotel (jail) while we check you out.” “BTW, if you’re not here legally, you’re charged with the crime of not carrying papers in the State of Arizona.”

“What’s the problem officer?” (says a brown person, a black person, or the driver of a van, or the driver of a vehicle with out-of-state plates, or the driver of a rental vehicle) [Insert one of following here] “You were speeding, you were weaving within your lane, you crossed the fog line, you made a U-turn back there, etc.” (says a cop) “Where have you been?” “Where are you going?” “Will you give me permission to search the vehicle?” “You are being detained for a more extensive search (still without a warrant) because I have a reasonable suspicion you have… [violated the law in some way]” (the progression of cop’s statements) “You are being charged with conspiracy to smuggle yourself into the United States” (one potential final cop statement out of the many possibilities of this profiled, fishing expedition)

Government search and seizure on less than probable cause, profiling, racial profiling—these had been standard operating procedure in Arizona, and in the rest of the country, on an ever-growing basis through the 70’s, 80’s, and 90’s.

They laid the groundwork for the really whacky anti-immigrant lawmaking that began in Arizona with the passage of Proposition 200, which required individuals to produce proof of citizenship before they could register to vote or apply for public benefits in Arizona. Parts of the law were of dubious constitutionality, and it is still winding its way through the court system.

Then-Arizona Governor Janet Napolitano, an elected Democrat now the Director of Homeland Security in the Obama administration, vetoed a 2007 SB 1070-type bill in April of 2008, staving off for a time the constitutional crisis and taxpayer fleecing that is and was surely to result from the signing of SB 1070 in April of 2010 by the right wing’s robotic past-her-prime cheerleader—Jan Brewer.

Nevertheless, reactionary forces did manage to get a law called HB 2779 enacted in Arizona. It went into effect on January 1, 2008, and imposes penalties, including a loss of state licenses, on employers who knowingly or intentionally hire undocumented workers in the state.

It for all intents and purposes has never been used. Why, you ask? That’s easy. Right-wingers are often business owners, and the last thing they want is to be held responsible for hiring the undocumented. Republican law-enforcement and prosecutorial forces in Arizona have made this law a farce, passed merely to give the illusion of “cracking down on illegal immigration.”

An instructive bit of history in Arizona politics is that the same state legislature that passed SB 1070 also proposed a bill to force President Obama to prove he is not an illegal immigrant. The inmates are truly running the asylum. Placated by the adoption of SB 1070, the crazies eventually abandoned the birther law.

His 287(g) status revoked, keystone cop poster boy Sheriff Joe Arpaio teamed with Republican prosecutor Andrew Thomas (he of pro-SB 1070 litigation assessment—“the law is on our side”—evidently he meant Murphy’s law rather than actual law) to invent the laughable conspiracy theory that impoverished, uneducated, undocumented smuggled Mexican workers were co-conspirators in their own smuggling. That way they can be charged with smuggling under the human coyote law that was enacted to prosecute the professional smuggler of human beings. Whoever admitted Thomas to Harvard should be fired; a little knowledge is a dangerous thing.

Arizona’stourism is down, it’s economy is struggling, the crazies on the right have begun a political battle that residents’ children’s children will pay through the nose for years to come.

If you take “Peace” and add an “R”, as in Republican, who do you get?—Pearce. See what adding “Republican” can do? Arizona, don’t you think it’s time the other side had a chance? Vote.

And remember (just like the road sign), “Slower traffic keep right”.

(This piece was written by Marty S. Blair and his friend, another longtime Arizona resident, Joseph Fuller.)

Friday, August 13, 2010

I have been waiting for the emotions of the post-SB 1070 injunction time period to subside some before I made this post.

After all, I am relatively new to the observation of Phoenix politics, new to residing in the Phoenix metropolitan area (in fact, I’m still up north for the summer), and I hardly qualify as an observer entitled to second guessing.

I am not; however, new to civil disobedience. (among other forms thereof)

And besides, ignorance has never kept me from expounding excessively in the past. I shall try to keep my remarks temperate.

In life, as in comedy, timing is everything.

Ask Andy Roddick, who became the #1-ranked tennis player in the world in 2003. (great life, but came into his own winning his first Grand Slam during the start of the reign of the most dominant tennis player ever—Roger Federer—Roddick immediately lost his ranking, and has not won another Grand Slam. It has haunted him.)

Ask George W. Bush, who without help could not lead a troop of boy scouts out of the woods back to the safety of the suburbs. (he lost the 2000 Presidential election to Al Gore, but won it because he happened to be running when a Supreme Court justice wanted to retire to Arizona under a Republican President, and another Justice had bitterly complained of a “high-tech lynching” supported by Senator Gore at the Justice’s confirmation hearings in his nomination submitted by Bush’s father, and those Justices joined three other conservative Republican Justices in abandoning career-long states’ rights recognition to overturn Florida’s Presidential election and give the victory to Bush; Bush 43 also happened to be President when Al Qaeda attacked the United States, leading to a sharp upsurge in popularity, which he needed to survive his Vice-President’s concocting stories about Iraq possessing weapons of mass destruction so that the United States could justify a needless, senseless, and expensive war against Iraq.)

On July 28, 2010, the Hon. Susan R. Bolton of the United States District Court in Phoenix, Arizona enjoined the most regressive and divisive piece of legislation since the decade leading up to the Civil War, a century and a half ago: SB 1070. July 29, 2010, the date SB 1070 had been scheduled to take effect, should have been cause for celebration, but instead it saw civil disobedience and protesting in Phoenix like the city has not seen before.

This anomaly in the reaction to victory can be felt in watching two dynamite videos by Arizona activist Dennis Gilman. In the first video, shot on the day of the federal court hearing on the injunction request, July 22, 2010, the protest feels righteous, pure. To most people at the time, SB 1070 still seems like an open question, and the justifiable response, even in the words of an innocent child is “We will not comply.” Hispanic activist Carlos Garcia’s words ring true, the look in his eyes resolute as he heads off into no man’s land—custody courtesy of the Maricopa County Sheriff’s Office. The scene construction, editing, and music of the video all give it a dynamic and synergistic effect.

In contrast, the second video, shot on July 29, 2010 the day after Judge Bolton issued her decision, provokes a much different feeling. Not that it is not a similarly great video. It is, but for different reasons.

The protests seem contrived, staged. They lack the real urgency and feeling of the July 22, 2010 protest. The biggest reason for holding them feels like it is to get on television. That is not a totally bad thing, especially since it has been the tactic of the fascist MCSO led by head nazi himself Sheriff Joe Arpaio. Such tactics need to be countered, but it is critical in my humble opinion not to give up the moral high ground. The protests of July 29, 2010 risked doing that.

And don’t tell me SB 1070 is still in effect. That’s just damn silly, almost on a par with those who say that there was nothing in SB 1070 that called for racial profiling. The entire guts of SB 1070 were rippedfrom the bill, and what is left has no life of its own, or significance, whatsoever.

It has not been formally struck down yet, only enjoined until a full hearing on the merits, but if you’re one of those who holds out hope that at least as much of SB 1070 that Bolton enjoined won’t be struck down, do yourself a favor—don’t bet the ranch on it. In fact, if there is anybody foolish enough out there to bet that it won’t be struck down, and there are likely enough already-drank-the-Kool-Aid right-wingers in Arizona alone to start a hedge-fund bet, I am willing to take the opposite side up to and including any amount not to exceed 653 gazillion, gatrillion, gabillion dollars. Times 2.

Not that there isn’t any remaining justification for civil disobedience. And in fairness, the protests were focused in that direction. They just seem ill-timed.

My favorite parts of the second video were the sign on the door the Fourth Avenue Jail—“Help Sheriff Arpaio Fight Illegal Immigration” and “Become a Deputy Sheriff, Laterals Welcome”, and the 4’8” female member of the MCSO riot squad who the MCSO placed on the front line of the phalanx.

First, what the hell does fighting illegal immigration have to do with being a county sheriff, or a deputy sheriff? Aren’t they supposed to keep us safe?Who is doing thatwhile they fight the invasion from the South? Even the police chief of the conservative city of Mesa (George Cascon) knows the answer to this one. Answer—NOBODY IS.

Second, not only are laterals welcome, but evidently potential riot team members of any height, weight, sex, or physical infirmity are encouraged to apply to not only fight illegal immigration, but control unarmed protestors who get too close to garage doors.

I felt sorry for this lady (she looked like a female on the video). It was a question of symbolism. She probably can do her job just fine.

However, the real protest is not against SB 1070 anymore.

The real protest is against Joe Arpaio (except the feds are planning a long vacation for him anyway), and the idea that there is room for future Arpaio’s like Pinal County Sheriff Paul Babeu, or state legislator Russell Pearce.

Speaking of that great legal drafter Pearce, the real protest is against racist-connected Russell Pearce.

The real protest is against ignoramus Governor Jan Brewer.

The real protest is against 287g and Secure Communities; they have to end.

The real protest is against the Republican party’s recalcitrance to participate in immigration reform so that they can exploit racial issues for a short-term gains in votes. (to their long-term detriment, this is one side benefit)

The real protest is against activist conservative judgeschipping away for forty years at the Fourth Amendment in the righteous name of law and order. As a result, profiling is legal. As a result, racial profiling is legal. As a result, pretext arrests are legal.

The police state is on the way, Hispanic cleansing or no. What are you willing to do to stop it?

Civil disobedience has its place; it can be effective. For a while though, it might not be a bad idea to focus more on educating the public, and voting.

Thursday, August 5, 2010

Refusing to support the Dream Act allows racism practiced by adults to be acted out upon children. The latest Republican/right-wing idea is even more outrageous—taking it out on babies!

Truth, once again, is far stranger than fiction.

Prominent white Republican men have come out in favor of (1) holding hearings on amending the 14th Amendment to the Constitution, (2) repealing the 14th Amendment to the Constitution, or (3) writing a state law which would deny federal citizenship.

I am not quite sure which, but then again, they have no idea what they are talking about either.

The 14th Amendment specifically provides “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside…”

It also forbids states from denying anyone "life, liberty or property, without due process of law", and makes it illegal for them to "deny to any person within its jurisdiction the equal protection of the laws."

Mainstream Republicans no doubt seek to mollify fringe conservatives (can anyone tell the difference anymore?) by calling for hearings on what would be this outlandish and highly improbable action. Sen. Lindsey Graham (R-SC) has discussed introducing a piece of legislation that would repeal the 14th Amendment. That has about as much chance of happening as Khalil Gibran becoming the next governor of Arizona. (Gibran, a Lebanese poet whose works were adopted by the 60’s counterculture, died in 1931.)

A bill like Graham is trumpeting would have to pass both houses of Congress by a two-thirds majority in each house, and then be ratified by the legislatures of three-fourths of the states (most Constitutional amendments have taken this route), or by a state convention (has happened only once in history). Perhaps Graham could precipitate a Constitutional Convention being called by two-thirds of the legislatures of the States. That Convention could then propose an amendment. The amendment would then have to be sent to the states to be approved by three-fourths of the state legislatures or conventions. (has never happened in our history)

In 2007 Graham lobbied for granting legal status to 12 million undocumented workers, and along with President George W. Bush and Sen. John McCain, R-AZ, led the failed immigration reform effort that would have given illegal immigrants a path to citizenship. Graham and McCain have officially flip-flopped. And about the only thing Bush 43 has uttered publicly since retiring to obscurity in Dallas is that he would torture people again (in reference to waterboarding) to save lives. No word on whether he joins the ranks of “baby racist” like his former colleagues.

The House of Representatives nearly always outdoes the Senate when it comes to kooky extremism. Lamar Smith’s (R-TX) Birthright Citizenship Act of 2009 would deny children of illegal immigrants US citizenship through statute rather than a constitutional amendment.

Has this guy been living under a rock? Or does he just like wasting taxpayer money by proposing laws that are clearly illegal? Smith proves once again that most Republican Congressmen have failed eighth-grade civics class. Can someone please send him a telegram informing him his “beloved” United States Constitution cannot be changed in that fashion?

Even worse, he has 93 co-sponsors on the bill! That means that almost one-fourth of the entire body of the House of Representatives aren’t smart enough to get out of middle school. And you wonder why the country has seemingly gone to the dogs? White Republican men could not negotiate their way through a game of Pac Man.

Others supporting the baby-bashing movement include Rep. Nathan Deal, a Georgia Republican, who is in a runoff to be the party's candidate for governor; Kevin Craig, R-MO, and Gary McLeod (an obscure South Carolina Republican Christian conservative who is challenging Majority Whip Dem. James Clyburn).

Senate candidate Rand Paul (R-KY) said he supported stripping citizenship from children of the undocumented shortly after he won his primary. He said other things too until the national Republican leadership told him to stuff it lest the populace really find out what his positions were.

Fred Thompson, the TV actor and short-lived candidate for the 2008 Republican nomination for President, spoke of repealing the 14th Amendment back in 2007. And no such list would be complete without racist Tom Tancredo, son of Italian immigrants, Republican politician from Colorado, who is attempting a run for the governorship of that state by joining something called the American Constitution Party. (yeah,…rrrright)

McCain has taken an increasingly hard-line position on every conceivable issue in politics, particularly immigration matters, as he faces conservative J.D. Hayworth in Arizona’s primary election later this month.

Unchallenged and unrivaled champion boneheads remain Arizona (where else would they be from?) politicians Russell Pearce and Andrew Thomas, who believe they can repeal the 14th Amendment by passing a state law in Arizona!

Pearce at least has an excuse—he was an idiot to begin with, an unthinking, thug cop who was second in command at the world renown (for all the wrong reasons) Maricopa County Sheriff’s Office.

Thomas is less fortunate. He is running for the Republican nomination for Attorney General of the state of Arizona amidst a state investigation into his ethical behavior in prosecuting his political enemies, and a criminal investigation by the federal government in which he is a “subject” involving criminal allegations of abuse of power concerning his days as Maricopa County Attorney, and his unholy alliance with the “target” of that investigation, America’s worst and most embarrassing Sheriff, Joe Arpaio.

Thomas has said that if elected he plans to work with Sen. Pearce to write a “legally sound” bill aimed at denying automatic citizenship to babies born to illegal immigrants. I am beginning to suspect that the real Andrew Thomas, the one who graduated from Harvard Law School, was abducted by aliens from Area 51, and whoever or whatever has taken over his body and is running for the chief law enforcement official for the State of Arizona, is not of this world.

And let’s not forget Tom Horne, who promised to support efforts to challenge a 112-year-old Supreme Court interpretation that all babies born on US soil are citizens, with the exception of the children of foreign diplomats. As superintendent of public instruction, Horne was instrumental in the adoption of a law banning the teaching of ethnic studies classes in Arizona's K-12 public schools signed by the governor in May.

The rationale for the ban was that such classes were somehow “racist”. Horne is also running for the Republican nomination for Attorney General of the state of Arizona. Jeez…..Is David Duke running for Arizona Attorney General too?

The Arizona politicians contend their proposed state baby-bashing bill would not violate the 14th Amendment because they would “write it right." A reasonable person is left to conclude only that they are in denial, delusional, or both. The 1868 Amendment to the Constitution and the Supreme Court case of US v Wong Kim Ark, 169 US 649 (1898) have been the law for almost 150 years.

These people are all in law enforcement. Why should they let the law get in their way?

Do you notice anything in common about all these people? Why, yes…they are all white Republican men.

If I were a betting man, I wouldn’t bet on the 14th Amendment to the Constitution going anywhere anytime soon. I also would not bet on the majority of these white Republican men regaining their sanity.

Instead of allowing them to join crazy Joe Arpaio in “cracking down on illegal immigrants”, the country would be much better served by setting up internment camps for white Republican men. With profuse apologies to the States of Mississippi and Alabama, we set up the rest of the entire country but for those two states as “exclusion zones” where white Republican mencould not reside.

We thank Mississippi and Alabama for their patriotic sacrifice, and rest easier at night knowing the nation is more secure than ever without this cadre of white Republican men constantly conspiring to violate the individual liberties and freedoms of the rest of the American people.

We even let ‘em have waterboarding back, but only on each other. That’ll keep ’em busy.

Wednesday, August 4, 2010

Just because racist law SB 1070 has had its guts ripped out courtesy of the United States Constitution and the federal judiciary in the form (thus far) of a courageous Hon. Susan R. Bolton does not mean the twisted movement is through by any means whatsoever.

SB 1070 will now be struck down more times in the federal court system than Pee Wee Herman would have had he took to the ring with Mike Tyson in his prime.

Like time though, a racist marches on. It’s not exactly “Onward Christian Soldiers”, but there will be a parade.

The National Socialist Movement (this is false advertising, the name should be something like “National White People’s Movement”), a white supremacist group based in Detroit, Michigan, has secured a permits for a parade and for loud noise for an August 14, 2010 event in Knoxville, Tennessee.

Permit-applicant Brian Culpepper, who represents the group’s Volunteer-State chapter headquartered in Decatur, claims the event will be an “anti-amnesty” rally to supportTennessee efforts to pass a law similar to SB 1070.

The white supremacist group claims to be getting “tremendous support” from mainstream conservatives on issues relating to immigration. Birds of a feather do flock together, don’t they now?

Saturday, July 31, 2010

Now that SB 1070 has been for all relative intents and purposes enjoined, several things are clear:

1. US District Judge Susan R. Bolton was highly underestimated. Although I was certainly guilty of this, I have a better excuse than many (four weeks ago I did not even know who she was). I believed that probably no judge sitting in Phoenix would have the kahunas (that part was right) to do the right thing—to follow the law and enjoin SB 1070. The Ninth Circuit Court of Appeals in San Francisco would quickly correct the situation on the initial appeal should that happen.

Judge Bolton not only demonstrated she understands the law, but also that she possesses courage, and that she is remarkably sharp (no real surprise because most federal judges are). Her opinion will stand the test of time, along with the scrutiny of history.

Even as the tea leaves coming out in the media led me to conclude she was probably going to somehow split the baby, I felt somewhat pessimistic that she would do the right thing. This pessimism has been honed through the years by observing first-hand judges arrive at the decision they want to arrive at by every intellectual dishonesty imaginable. Not so with Judge Bolton. She tore this racist law to shreds, and justifiably so.

The way she split the baby, and more in form than in substance, was by holding the law to be severable in striking it down, that is, she struck down its unconstitutional parts while leaving the constitutional parts standing. She did not have to do this.

She could have held under Arizona state severability law that, despite a severability clause in SB 1070 itself, the valid portions were so “intimately connected” with the invalid provisions so as to raise the presumption that the Arizona Legislature would not have enacted the valid provisions without the invalid provisions. She then could have struck down the entire law.

Had she ruled that way, I feel she would have concluded correctly. All she left standing were provisions relating to harboring, concealing, and transporting illegal aliens (including the impoundment of vehicles used to do so); and provisions that are superfluous in that they provide for SB 1070 violations where the traffic code is already being violated, but the incidents involve illegal aliens.

Those provisions were going to be held to be legal in any court, anywhere, and against anybody. They are essentially meaningless, but Bolton threw pro-SB 1070 people a bone, and at least a small way to save face, though they are not astute enough to go about doing so. What she struck down was the entirety of SB 1070 anyway, and the remaining bits certainly were very intimately connected with the invalid provisions, because they have no meaning or teeth without them.

I believe you can argue Bolton was correct on the law and not just being politically savvy, but my money is on the latter. No matter. This was a total victory for the anti-SB 1070 people, who in my humble opinion should look at it that way, and be grateful. There are enough real battles to fight without fighting the losing battle about what is left over.

Bolton’s opinion was thorough, concise, well-organized, and most likely appeal-proof. (caveat on United States Supreme Court below).

2. SB 1070 was drafted by ignorant clowns. Does this really surprise anybody? Immigration-fee ambulance chaser, connected-to-white-supremacists, alleged law professor, and probable Kirby vacuum cleaner salesman Kurt K. Kobach drafted this law with the help of others even less talented than he.

Only a total moron could think this law was constitutional (to wit, Republican Attorney General candidate and Arpaio-buddy Andrew Thomas—“the law is on our side”…yeah, right), but what follows is just one example of how stupid this law was.

In the meat of the law, Section 2(B), which provided for arrests and immigration status checks, Kobach initially had the law triggered by any “lawful contact” with a police officer. He then wanted immigration status checks on those who were “reasonably suspected” of being illegal aliens.

No veteran of criminal law, Kobach realized after the bill was signed into law that if officers were going to gallivant around simply making “lawful contact” (which was too broad to withstand constitutional scrutiny), they at least had to have a “reasonable suspicion” of criminal conduct in the first place to make an initial detention (language is from the seminal criminal case of Terry v Ohio in 1968), or the stop would not be valid. Left unchanged, the original language would have left law enforcement extra vulnerable to racial profiling claims (stops based on skin color and appearance alone), and to cases being thrown out for unlawful initial stops.

So he had the law amended to “for any lawful stop, detention or arrest” as the trigger point so as to define the initial detention as a lawful one from a search and seizure standpoint. This made the law more palatable in one sense, but it revealed the law’s true agenda. That is, “When we want to (when the person looks Hispanic), we’re going to demand that everyone’s immigration status be checked, because we’re going to arrest them and check it.”

After the law was changed to “for any lawful stop, detention or arrest”, it became problematic that the next sentence provided for “mandatory immigration status checks upon arrest”, because the law by its own plain words was not limited to arrest after reasonable suspicion of being an illegal alien, but to all arrests of any kind.

Remember, the original version did not say “arrest”, it said “contact”, and the sentences were held to be unrelated, or independent of one another. Thus, as written, SB 1070 would have mandated immigration checks after every arrest in the state. Kobach and friends, Pearce and crew, are like the Keystone Cops, scurrying about not having the slightest clue what they are doing.

Again, this surprises nobody who has been observing the situation objectively.

To completely dissect the constitutional problems with SB 1070 would take a 500-page opinion, not just the 36-pager on preemption handed down by Bolton.

3. The pro-1070 people drank the kool aid, and are still true believers.

Brewer won’t work with the President on immigration reform. “Everything is off the table until we secure our borders.” Isn’t she miscalculating the strength of her position a little? Pearce believes the injunction “will be lifted”. Good luck, amigo.

Just yesterday the Ninth Circuit Court of Appeals denied team-Brewer’s 40-page motion for an expedited appeal of the injunction in a two-page order that basically boils down to team-Brewer “not following the court rules”. In other words, Brewer and Co. are saying “impoverished migrants better follow the law or watch out, we and our agenda are above the law.” They say it with SB 1070. They say it with every action they take.

I cannot begin to relate to you how many “legal observers” on Huffington Post bragged, mocked, and preened to me about how SB 1070 would establish a new order, and that it was plainly constitutional. I told all of them to check back with me on or after July 29. To date, I have not heard from even one of them. Go figure.

Over the next year or so, SB 1070, hopefully along with Brewer, Pearce, Arpaio, and the rest of nativists can be filed in the trash bin of history.

The funniest line of the past few days was written by David Safier of “Blog for Arizona”, who noted that every right-wing idiot legal expert (he put it a little more diplomatically) insisted SB 1070 was legal, and that all you had to do to realize it was to, children, “read the law.”

Safier laughingly ponders whether Bolton “took the time to read” SB 1070. If you take the time to read her opinion, it is pretty clear that she read it. In spades. And she was not impressed.

Taxpayers in Arizona should not be impressed either.

4. Beware of the Fab Five. (The conservative justices on the Supreme Court of the United States)

I have said recently that:

"No Ninth Circuit Court of Appeals Judge, nor any sitting Supreme Court Justice, would even for an instant consider voting for Arizona on the Preemption/Supremacy Clause grounds.

A Justice voting for Arizona on that issue would be a laughing stock in the legal community for generations, much like the Justice Roger Brooke Taney, who delivered the 1857 opinion of the Supreme Court in the Dred Scott decision, which held that Virginia-born slave Dred Scott living in free state Missouri had no case for freedom because he was “property” that could not be taken away from his dead owner’s estate without violating the Fifth Amendment’s guarantee of Due Process of Law.

I hope I am right. For a number of reasons, I think I am. Yet I caution you that I did not think any of them but the very king of intellectual dishonesty, Arizonan William Rehnquist, would vote to prevent the State of Florida from deciding its own election for President in 2000. Really, they all were just voting for Bush to be President.”

Any lawyer worth his salt can make a convincing argument that a horse chestnut is a chestnut horse. All of the lawyers on the Supreme Court are certainly worth their salt.

Tuesday, July 27, 2010

The Arizona state legislature has not come very far since the days of AZSCAM, the 1991 major political scandal that resulted in the resignation or removal of ten members of the House and Senate. Seven of them were charged with bribery, money laundering, and filing false election claims after being videotaped accepting thousands of dollars from a reputed mobster posing as a gaming consultant looking to assist the drive to legalize casino gambling.

Instead of representatives looking to illegally profit from their positions, the legislature is now filled with people with political acumens about as sharp as a church sermon on original sin. They are saying the intensity of the reaction to SB 1070 caught them off guard.

Republicans lead the bumbling way, but the Democrats are not far behind.

Rep. Kyrsten Sinema, D-Phoenix, the assistant House minority leader, said recently that while she had hoped to defeat SB 1070, even the opponents of the bill didn't foresee the national argument it started. "I knew it would be bad, but no one thought it would be this big," she said. "No one."

Really? Really?

You thought when your legislative body passed the most racist piece of legislation this country has seen in almost two generations, representing the biggest step backwards in race relations since the Japanese Exclusion Case ordered Japanese Americans into internment camps during World War II, and arguably the only blatantly racist legislation since the Civil Rights act of 1964 outlawed the last vestiges of segregation, that the rest of country would be focused on summer picnicking? You weren’t paying attention to the black civil rights movement in the 60’s? Or at least read about it? Jeez.

You thought when your legislative body placed a target on the back of every Hispanic in the state of Arizona, legal or otherwise, that the 2 millions Hispanics in the state would merely issue you their blubbering thanks?

Maybe it’s time to do a few less book signings, and a little more reading?

Yet that pales next to the idiocy that is the average Republican in explaining being blindsided by the furious reaction to SB 1070.

"The majority of us who voted yes on that bill, myself included, did not expect or encourage an outcry from the public," said state Rep. Michele Reagan, R-Scottsdale. "The majority of us just voted for it because we thought we could try to fix the problem. Nobody envisioned boycotts. Nobody anticipated the emotion, the prayer vigils. The attitude was: these are the laws, let's start following them."

Really? Really?

You thought you could establish your own immigration enforcement agency like Sheriff Joe, who is likely about to get indicted by the federal government for his abuse of power, and establish as official state policy his “let’s round up the Hispanics” schtik calculated to politically pander to the worst traits in the ultra-conservative Arizona Republican that rules the state, and that the federal government would just look the other way?

You thought the state of Arizona enforcing federal law on its own was the same as the federal government enforcing the federal law? Because you missed eighth-grade civics class, you thought the rest of the country did also? Or because some kook law professor from Topeka with white-supremacist ties and a history of stirring up illegal immigrant litigation so he could score some attorney fees for himself told you the law “mirrors federal law”? In the words of John McEnroe, heretofore unquoted on politics, “You cannot be serious!”

State Rep. John KKKavanagh, R-Fountain Hills, who helped write part of SB 1070, said the federal government's chronic inability to deal with illegal immigration forced the Arizona legislature to pass the illegal law that is SB 1070. He cited national polls favoring the state's measure, saying the law's popularity suggests Washington is out of step with the rest of America.

"We'll do whatever is necessary to protect ourselves,"…"And based upon Washington's response to this law, more will be needed."

In other words, it’s okay because “everybody’s doing it.”

Dear John: you’ve been out in the sun too long. Check with your mother on the “everybody’s doing it” excuse. Come inside, start reading some history books, which will reflect that it is you who is out of step with American values, not the Obama administration. Good luck with the lawsuit thing. You’re going to need it.

Perhaps the genius of the year award goes to a legislator who didn’t even get to cast a vote in favor of SB 1070, US Congressman Rep. Jeff Flake, R-AZ, who has the mostappropriate name for a character, fact or fiction, since Tom Thumb. A conservative Republican with a reputation for having a bit of a liberal streak when it comes to social issues, Flake wants to see SB 1070 go into effect so we can all see that it does not work??!!

And I suppose he also wanted to see hurricane Katrina hit New Orleans so we could all see the need to fix the levees?

NEVER in my wildest nightmare would I ever have envisioned that a group of Arizona politicians could enable me to view Sen. John Kyl, R-AZ, as a reasonable person. But it has come to that.

The only sensible thing I have heard from any Arizona politician without a horse in the race has come from Mary Rose Wilcox, a Democratic Maricopa County supervisor who is hoping US District Judge Susan Bolton will block SB 1070 from going into effect. "I have never felt the racism that you are feeling in Arizona today because of this bill."

To say "no one" saw this coming probably does not include intellectually-challenged Gov. Jan Brewer, arguably the smartest one of the whole Phoenix-based bunch. At least she could see would shoot up in the polls.

Alas, when the state finds out what the measure truly cost them, she’ll be discarded like yesterday’s bathwater.

It’s clear that these people should not be running a carnival, much less a state government.

TO ALL CITIZENS OF ARIZONA: We get the government deserve. VOTE. And vote them all out. Every single one of them. It’s time to start over.

Thursday, July 22, 2010

I feel a little like Jimmy the Greek, who used to predict outcomes of sporting events on TV until he flamed out in the blink of an eye with incendiary on-the-record racist remarks. Not too hard to determine what side of SB 1070 he would have been on—though black co-workers on The NFL Today have stated they never detected a racist bone in his body while working with him, and though he was born in Ohio but had family roots on the Greek island of Chios in the Aegean Sea.

Before any Plaintiff ever stepped forward (you knew there were going to be some), before any lawsuit was ever filed, and before the federal government joined the fray, I felt like SB 1070 would not be enjoined in United States District Court in Phoenix, would quickly be appealed to the Ninth Circuit Court of Appeals in San Francisco, where that court would issue a stay against it while its legality was litigated. If the state of Arizona then were to apply to appeal that order the United States Supreme Court, the high court would decline to hear it.

Now that I have 100 times the information as I did back then, if I were a betting man, I would still feel it’s a good bet. I say that with one caveat—it is awfully difficult to tell from my perspective what US District Judge Susan Bolton will ultimately do as a result of today’s hearing.

I would not expect a decision today, though I believe she is going to have to issue one soon enough for the aggrieved party to take emergency appeals to the Ninth Circuit, and then to SCOTUS should it so decide. Bolton has reportedly implied to attorneys of record in the cases that it is not a given that she could even issue a decision prior to July 29, 2010, the effective date of SB 1070.

I believe that to be bluff and bluster. Why I do not know, because there is zero chance that the parties in this matter are going to settle their differences prior to her decision. (the common reason why judges take such positions—they would rather not have to decide disputes, particularly intense and controversial ones. That way they for certain avoid what they perceive as the worst outcome in any and every case that comes before them—reversal on appeal by a higher court)

In the longer run (past the request for injunction), SB 10170 has no chance of survival. It is about as constitutional as Jan Brewer’s qualifications to govern a state in the union.

Today’s request for injunctive relief before Judge Bolton is a much trickier call. She is difficult for an outsider to get a read on.

If you really wanted to get an accurate picture of her and what she might do in this essentially criminal case, you’d speak with a criminal attorney who practices in front of her regularly in criminal cases, and also agree that anything he or she tells you is not for attribution.

But the MSM, of course, is not doing that. It speaks with the former president of the State Bar of Arizona, a former US Attorney, and Bolton’s old cronies from her days on the state court bench of Superior Court in Maricopa County. These are all politicians who specialize in saying absolutely nothing even when they are trying to say something meaningful.

For example, “Bolton, 58, has a reputation as a no-nonsense judge. (What judges seek reputations as ‘nonsense’ judges?)”; “She is known for focusing rigorously on the letter of the law. (Again, what judges build reputations on turning a blind eye to the letter of the law?)

“She's smart enough to know that whatever she rules, it's going to be appealed,…She's going to do a good job gathering the facts and making a clear record so the appellate courts can make their ruling. (Any federal judge knows this is going to be appealed.);
"I think she would be the best judge to have on this type of case," [one person describing Bolton as a down-the-middle jurist with a knack for handling complex cases while possessing rich judicial experience that includes stints in criminal, civil, family, juvenile and drug courts] (just a way of saying she had her own practice before becoming a judge rather than working at a firm)

A look at her history does not reveal much. She was born in Philadelphia in 1951, and earned her bachelor's and law degrees at the University of Iowa. That is weird in itself unless she went there on academic or athletic scholarship, or had family ties there. Who goes from Philly to the middle of Iowa? (with all due respect to Iowa City, which is a fantastic place to go to any Big Ten sporting event)

She came to Arizona in 1975 to clerk for a judge at the Arizona Court of Appeals. She went into private practice shortly thereafter. (Usually for a judge’s clerk that means she could not find a job at a firm.) She was appointed to the Superior Court in 1989 by then-Gov. Rose Mofford, a Democrat. During her 11 years as an attorney in private practice, she co-authored a book that provides legal and clinical perspectives on violence in families. These are indicators of a Democrat.

Yet Bolton was appointed to the federal bench in 2000 by then-President Bill Clinton on the recommendation of Arizona Sen. Jon Kyl, obviously a notorious Republican of the highest and most repressive order. (Senate and federal District Court appointments traditions essentially give Senators from the location of the judicial seat the decision to pick the person for the President to nominate.) This would ordinarily mean she is a Republican, and if associated with Kyl, a Republican in spades.

Bolton was considered for the state Supreme Court in the early 90’s. She was listed as anIndependent. Her current voter registration records have been sealed. Why? That is just weird. She was a Democrat, but now a Republican? Or what? And what on earth could possibly justify sealing her registration records? Who is she hiding from?

She struck from the Arizona ballot a land-preservation proposal advanced by the conservative Arizona Legislature. The measure was a bid to counter a similar proposal by environmentalists that remained on the ballot after her decision. She reasoned that the Legislature's proposal violated a state constitutional requirement that ballot measures cannot cover more than one subject.

She was called an activist judge (this is what Republicans call judges who decide cases against them regardless of whether the judge was correct on the law in making his or her ruling) She was reversed by the Republican Arizona Supreme Court, and the measure appeared on the ballot. It was defeated.

I still feel my initial, totally-without-the-facts thoughts should prove to be accurate. (Injunction denied, followed by appeal to Ninth Circuit, where injunction granted.) I am starting to get the feeling, however, that she might split the baby in half, giving something to each side. Don’t ask me how though, but judges can be very creative in that regard.

Or she just might surprise us and grant the injunction.

Reasonable minds could differ as to whether failing to grant an injunction would cause “irreparable harm” that is required to be found as the basis for an injunction. (I believe it would cause irreparable harm) That makes the decision even more political than normal. And as has been said, it is not easy to get a read on Bolton’s politics.

One thing is for sure. It is going to be an interesting two weeks. Hold on to your hats.